COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1684CV03366-BLS2
____________________
ILYAS J. RONA
v.
THOMAS M. GREENE, MICHAEL TABB, GREENE LLP, and GREENE & HOFFMAN, P.C.
____________________
MEMORANDUM AND ORDER ALLOWING MOTION FOR PARTIAL JUDGMENT ON THE PLEADGINS ON THE WAGE ACT CLAIMS
Ilyas Rona is a lawyer. He worked for and with Thomas Greene and Michael Tabb from 1998 through September 2012, first as an employee of the law firm Greene & Hoffman P.C. and then as a partner at the successor firm Greene LLP. Mr. Rona claims that he is owed a share of a $ 23.25 million fee that Greene LLP collected in 2015. More specifically, Rona claims that he is entitled to 20 percent of that fee because he had a contractual right to 20 percent of all profits of Greene LLP. In the alternative, and to the extent that Defendants assert that a portion of this fee is attributable to the period before 2009 when Rona was employed by Greene & Hoffman, Rona claims that he has a contractual right to be paid 10 percent of that portion of the fee and that Greene & Hoffman, Greene, and Tabb are liable under the Massachusetts Wage Act (G.L. c. 149, §§ 148 & 150) for failing to pay Rona a 10 percent share of the 2015 fee.
Defendants have moved for judgment on the pleadings in their favor on the Wage Act claims in Counts XII and XIII. The Court concludes that Defendants are entitled to dismissal of the Wage Act claims and will therefore allow the motion.1
Rona alleges that he was entitled to receive 10 percent of any fee earned at any time for any case that Rona worked on while employed by Greene & Hoffman, including the Neurontin class action that ultimately generated $ 23.25 million in income for Greene LLP. In other words, the payment that Rona claims he is now owed
1 Defendants’ motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is governed by the same standards as a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Boston Med. Ctr. Corp. v. Secretary of the Exec. Office of Health and Human Svcs., 463 Mass. 447, 450 (2012); Welch v. Sudbury Youth Soccer Ass’n, Inc., 453 Mass. 352, 353-354 (2009).
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was contingent upon Greene & Hoffman (or its successor, as Rona alleges) someday collecting a fee for a case on which Rona worked. According to Rona, that contingency did not come about until 2015, almost three years after Rona stopped worked for Greene LLP.
Rona’s counsel conceded at oral argument that the unpaid amount that Rona claims he is owed is not a “commission” within the meaning of the Wage Act. Rona acknowledged in his written memorandum that the 10 percent of the Neurontin fee that he now seeks is “not a sales commission in the traditional sense.” Rona may have also conceded that this amount is not a “commission” for purposes of the Wage Act because it did not become “due and payable” until several years after Rona stopped working for any of the Defendants. See G.L. c. 149, § 148; Suominen v. Goodman Industrial Equities Mgmt. Group, LLC, 78 Mass. App. Ct. 723, 737, rev. denied, 459 Mass. 1109 (2011).
Since the amount Rona claims is now due was contingent upon future events, specifically the future collection of revenues by Greene & Hoffman or its successor, that amount is not “wages earned” within the meaning of § 148 of the Wage Act. See Prozinski v. Northeast Real Estate Services, LLC, 59 Mass. App. Ct. 599, 603 (2003) (compensation that has not yet been earned but instead is contingent upon future performance or events is not subject to Wage Act); see also Weems v. Citigroup, Inc., 453 Mass. 147, 153-154 (2009) (rejecting claim that provision in employment contract requiring forfeitures of unvested stock violated Wage Act, because awards of restricted stock were subject to contingency that employee remained with company for defined period and thus were not earned wages as a matter of law).
ORDER
Defendants’ motion for partial judgment on the pleadings as to counts XII and XIII of the complaint is ALLOWED.
May 11, 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court